REIFICATION

Processes of reification,Footnote ¹⁶ which are closely related to the narrowing of culture to things that can be commoditized, further complicate contemporary anxieties about culture and tradition. Two senses of reification are critical here: reification as a fallacy of regarding abstractions as if they were concrete things and, even more importantly, reification in the sense of processes in which mutable, socially produced phenomena come to be thought of as having unchangeable, thing-like qualities and as enduring in nature.Footnote ¹⁷ The two senses of reification are central to critical reflections on the protection of culture and tradition.

In her critique of Michael Brown's Reference Brown1998 article, “Can Culture Be Copyrighted?” Jo Recht notes that his use of the word culture involves a troubling essentialism. She points out, “We create a snapshot when we compile an ethnography: we create a similar, two-dimensional representation when we try to delimit a cultural unit or practice amenable to legal rules for protection.” A historical moment is ratified into legal code. She goes on to note, however, that although some multinational organizations such as United Nations Educational, Scientific, and Cultural Organization use culture as though it were a discrete entity, other organizations are “more specific and less abstract.” The World Intellectual Property Organization, for example, does not speak about protecting culture but rather seeks to protect “traditional knowledge” and “traditional cultural expressions.” Recht concludes, “Although a unitary culture cannot be identified, let alone protected, objects and items of knowledge produced within cultural configurations can and should receive protection.”

The danger here lies in substituting one form of reification for the other. By avoiding the fallacy of treating abstractions as if they were concrete (i.e., in thinking that culture is a thing that can be protected), we risk the other form of reification (making something fixed or thing-like when it is actually dynamic, evolving, and the outcome of particular kinds of social relationships). In this issue Guido Pigliasco notes this when he states that many measures to “conserve, safeguard, and sustain non-Western cultural practices actually objectify and isolate them. They risk freezing practices that were formerly mutable.” In other words the process of protecting traditional knowledge, traditional cultural expressions, or cultural objects runs the risk of focusing primarily on knowledge, expressions, and objects, rather than on the social relations and practices that generate and sustain them. In this sense, reification is similar to commodity fetishism in which social relations (and people) are pushed aside by a primary concern with the social life of things.Footnote ¹⁸

Reification emerges as a crucial, but unstated, factor when authors in this issue describe the different contexts in which processes of reification take place. Recht notes that one risk of defining traditional knowledge as a legal category is that the definition of what constitutes traditional knowledge is left to lawyers and legal scholars. The same risk applies to other aspects of culture for which legal protection is sought. Nason and Peter argue for indigenous control of traditional knowledge, “that research interests and scholarly rights are secondary to tribal heritage interests,” so that it is for indigenous people, rather than legal or other scholars, to define what constitutes traditional knowledge.

In this regard The Sawau Project described by Pigliasco provides an example of a local initiative in which indigenous people document and control their own traditional knowledge and traditional cultural practices in a way that is inclusive (the entire Sawau community can participate) and flexible (the recording and storage technology does not fix culture at a particular moment but instead allows for the recontextualization of documented knowledge and practices). Pigliasco describes it as “an ever unfolding, open-ended project.” What is unclear from his description, however, is the cost of the project, how it is being funded, and whether the cost of the technology limits the extent of the project or introduces pressures for commercialization.

Similarly, Van Meijl's discussion of Māori approaches to intellectual property illustrates resistance to decontextualization. What Van Meijl describes as a form of making ethnic boundaries between the Māori and Pākehā fades as a conflict over ethnicity if one takes at face value Māori arguments such as those made in the Wai 262 claim to indigenous flora and fauna and associated Māori knowledge. In discussing the claim, Van Meijl writes that

Surely the goal of obtaining exclusive rights is precisely about commercialization: the prevention of commercialization by others. Van Meijl's discussion of the Wai 262 claim is cast as a general argument about what he perceives as the main thrust of Māori political activity. He compares the use of claims to intellectual property rights in Wai 262 to what he calls “the parallel tendency of setting hurdles for the access of outsiders to Māori society for research purposes.” According to Van Meijl, contemporary Māori politics establish boundaries between themselves and non-Māori in a range of social and political contexts. Extending this position in the introduction to this special issue, Van Meijl argues that it is “ethnic inequalities that are triggering indigenous discourses of cultural property in the first place, not only in the Pacific but around the globe,” and he expresses the hope for the development of indigenous strategies that protect cultural traditions but do not simultaneously strengthen such ethnic differences.

Goldsmith provides an alternative interpretation of the Wai 262 claim. He compellingly argues that Māori are unwilling to accept the traditional Western distinction between nature and culture. For Māori, making a claim to control and benefit from their own knowledge makes no sense in the absence of the continued existence and Māori rights over the very flora and fauna that are the subject and referent of that knowledge. Goldsmith shows that land and material objects have spiritual properties, and are not natural in the way that Western science takes them to be. He concludes his article, “Who Owns Native Nature?” by noting, “The question … asks not just who owns nature or culture … it asks who has the right to define which of these is which and how much of each is ownable.”

To the extent that Māori claims to intellectual property reinforce ethnic boundaries, what are those boundaries for? Van Meijl analyzes these boundaries in terms of “a political struggle for indigenous autonomy,” an associated desire for the “preservation of cultural purity,” and “the division of the world into two radically distinct kinds of people: Māori and non-Māori, insiders and outsiders.” The critical context for such boundary discourses is the long history of subjugation and struggle in which Māori have employed a variety of strategies, innovations, and negotiations. Reification—in the sense of working to protect knowledge and cultural expressions in the absence of a social context that makes said knowledge and expressions meaningful to the communities from which they originate—is a critical part of what is being contested. Goldsmith argues that these questions are “partly matters of culture,” but they are also shaped by relations of power in a postcolonial settler society such as New Zealand.

The link between claims to traditional knowledge and forms of cultural expression and wider issues of sovereignty and human rights—issues that go beyond matters of property—can be seen through an examination of the hegemony of property and the possibilities of resisting that hegemony.

THE HEGEMONY OF PROPERTY

In contemporary discussions of the protection of traditional knowledge and practices, the ideas of property and property rights are often unexamined and taken as given. Property thus becomes a hegemonic perspective, part of a particular way of seeing the world, human nature, and social relationships, which is political rather than merely intellectual (or merely discourse). It is also part of the framework within which power and inequality are exercised. Nason and Peter begin by noting, “Although the exact nature of a legal system may vary significantly from one society to another, it ordinarily defines property rights and protections for those rights.” Despite acknowledging that what constitutes property and property regimes can vary, they posit property and property rights as categories that can be and are taken for granted. In other words, property and property rights are stated as naturalized phenomena and not discourse.Footnote ¹⁹

Similarly, Recht argues that we must find ways to respect and attempt to save traditional knowledge without jeopardizing intellectual property values that have acquired the force of statutory law and received wisdom in Western society. She takes this position despite the fact that developing countries have long been aware of the disadvantages to them of the increasingly globalized system of intellectual property rightsFootnote ²⁰ and, as Recht points out, “have unsuccessfully opposed their extension on many occasions.” Nonetheless, “The hegemony of the northern industrialized countries … and their overarching economic dominance makes it senseless for the developing nations to stamp their feet and refuse to join the game.” Recht may not go as far as naturalizing property, but she seems to argue that the terms of negotiation in that game are set by one side alone.

Not surprisingly, Lindstrom's discussion of the commercialization and international marketing of kava takes Western legal conceptions of property at face value. But here we see the difficulties of deciding who, among the many communities that traditionally used kava, might have property rights vis-à-vis the drug as well as the practical difficulties that Pacific people will have in formally and legally enforcing property rights. Lindstrom states, “Globalization makes local knowledge claims tricky.” A community's property claims are only enforceable to the extent that they are recognized by national and international legal structures. But even with national and international legal systems in place, the practical difficulties of accessing such legal systems are so daunting that Vanuatu has adopted a strategy of marketing its kava using geographic indicators rather than relying on the enforcement of property rights.

The question is whether and what kind of resistance to this hegemony of property is possible. The recently emerging anthropological critiques of property that reexamine culturally-diverse ownership relations are a critical tool in this regard.Footnote ²¹ Contributions from Pigliasco, Goldsmith, and Moutu open up similar perspectives, providing examples and arguments that help avoid the reification and naturalization of categories such as property and ownership.

Pigliasco reminds us of a vital counterbalance to the frequently taken for granted discourse of rights: the relationship between ownership and responsibility. He describes Sawau conceptions of their relation to their cultural heritage in terms of custodianship rather than ownership, and he speculates that the ongoing importance of collective responsibilities may be a critical reason why intellectual property systems do such a poor job of protecting the traditional knowledge and traditional practices of indigenous peoples. An emphasis on responsibilities rather than rights is not limited to heritage, of course; but it is a characteristic of many indigenous systems of ownership more generally, whereby, for example, land ownership is not conceived in terms of rights derived from ownership but rather in terms of responsibilities that flow from ownership and the land itself. Goldsmith argues for different “logics of ownership” and that in some societies it would be more accurate to say that people are owned by the land, the environment, and their own traditions.

Andrew Moutu describes how conceptions of property involve more fundamental conceptualizations of creativity, agency, and social personhood. He begins with the observation that the “anthropological assumption” that ownership is both a type of social relationship and something dependent on creativity comes from “a world that is preoccupied with creativity.” And as Moutu argues, much of the analysis of ownership in Melanesia and elsewhere has suffered from this same preoccupation with creativity as a precondition to ownership. Among Iatmul who live along the Sepik River in Papua New Guinea, however, the relationship between creativity and ownership is reversed: Rather than owning what one creates, one can only create what one already owns. This inversion is based on Iatmul names that I consider a critical aspect of Iatmul conceptions of the social person.Footnote ²² In receiving a name, a person receives a set of relationships to places, ancestors, things, and other living people on which they subsequently act. These relationships of ownership precede any creative acts.

Taken together, the articles by Pigliasco, Goldsmith, and Moutu draw our attention to critical cultural differences in relationships between persons and things, and between persons with respect to things. Such differences are critical because they undermine the process by which rights, the idea that people own things (rather than vice versa), and conceptualizations of the relationship between creativity and ownership are reified and become naturalized. They open possibilities for rethinking property and ownership, and the concepts and assumptions involved in property and ownership discourses, in radical ways. They also suggest the possibility that indigenous concepts of ownership might influence Western property regimes rather than simply accommodating them.

From one perspective then, the articles in this issue present arguments on both sides of a dichotomy between a pragmatic use of existing property regimes to fight for indigenous rights and an insistence that indigenous ideas (about creativity, agency, ownership, and social relationships) are respected and harnessed for the development of new forms of ownership.

Previously, I argued against the application of existing property regimes to cultural property on the grounds that the language of property is the language of markets and commodities, a language that highlights certain kinds of relationships and rights (i.e., property rights) over other equally important relationships and rights (i.e., relations of kinship or common citizenship and rights to political self-determination or political sovereignty). I argued that we need a new language that does not intrinsically imply the market and must rethink the morality of free market transactions of culturally significant objects given growing disparities in wealth as well as economic and political power.Footnote ²³

More recently, Kristen Carpenter, Sonia Katyal, and Angela RileyFootnote ²⁴ have attempted to mediate the dichotomy of cultural-as-property and culture-as-not-property by arguing for a model of property that can encompass group-oriented legal claims and ideas of stewardship (rather than outright ownership) of cultural property. They argue that those who criticize the use of property to protect tangible and intangible traditional resources rely on a narrow model that has two aspects: individual ownership and an emphasis on owners' rights of exclusion and alienability for maximizing profit and value. Carpenter, Katyal, and Riley develop an alternative model of property and “peoplehood,” which allows for the possibility of nonowners to exercise custodial rights over tangible and intangible goods in the absence of ownership.Footnote ²⁵ Their model of “property and peoplehood” is an extension of Margaret Radin's approach to property and personhood in which she argued that property that is particularly constitutive of personhood, such as heirlooms or human organs, must be excluded from the market and must instead be understood as nonfungible, incommensurable, and inalienable.Footnote ²⁶ Carpenter, Katyal, and Riley extend Radin's position by arguing that “certain lands, resources, and expressions are entitled to legal protection as cultural property because they are integral to the group identity and cultural survival of indigenous peoples.”Footnote ²⁷

Although I agree with the position that anything critical for personhood or peoplehood should be excluded from market transactions, the arguments put forward by Carpenter, Katyal, and Riley for turning culture into property address some relevant aspects of property relations. Fungibility and commensurability characterize relationships between things, whereas alienability and inalienability characterize relationships between persons and things. What is missing from the arguments of Radin and Carpenter, Katyal, and Riley is precisely that dimension of property that most interests many (perhaps most) anthropologists: social identity and social relations per se, and in particular relations between persons (or peoples) with respect to things.Footnote ²⁸ Turning culture into property affects how property owners become conceptualized in that process, both by the framework and its agents and agencies, and eventually by the owners themselves. The risk is that peoplehood will become property-owning peoplehood, and such definitions and self-definitions have the potential to become more salient than other aspects of social relations and group identity such as kinship or political relations.Footnote ²⁹

Carpenter, Katyal, and Riley argue for the similarity between indigenous ideas of stewardship and fiduciary responsibilities of company directors and officers (i.e., the responsibility to exercise care, skill, and diligence toward their companies rather than acting in their own individual best interests). Although this is the center of their argument for the usefulness of property for protecting traditional indigenous resources—both tangible and intangible—they must argue against the dominant understanding of property in terms of individual owners' rights to exclude and alienate; and they do so by comparing indigenous peoples to company directors and officers. The dominant model for social relations is, once again, that of commerce and the corporation as well as the concomitant ideas of individualism, rationality, and maximization.Footnote ³⁰

ACKNOWLEDGEMENTS

I want to thank Toon van Meijl for inviting me to be a discussant at the Association for Social Anthropology in Oceania session on Discourses of Intellectual Property in the Pacific and the University of Auckland for funding my attendance at the conference. I also want to thank Claudia Gross and an anonymous reviewer for their helpful suggestions for my manuscript.